COMMON CAUSE (A REGD. SOCIETY) Vs UNION OF INDIA
Bench: P SATHASIVAM,RANJAN GOGOI,SHIVA KIRTI SINGH
Case number: W.P.(C) No.-000215-000215 / 2005
Diary number: 9123 / 2005
Advocates: PRASHANT BHUSHAN Vs
SUSHMA SURI
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 215 OF 2005
Common Cause (A Regd. Society) .... Petitioner (s)
Versus
Union of India .... Respondent(s)
O R D E R
P.Sathasivam, CJI.
1) This writ petition, under Article 32 of the Constitution of
India, has been filed by Common Cause-a Society registered
under the Societies Registration Act, 1860 engaged in taking
up various common problems of the people for securing
redressal, praying for declaring ‘right to die with dignity’ as a
fundamental right within the fold of ‘right to live with dignity’
guaranteed under Article 21 of the Constitution and to issue
direction to the respondent, to adopt suitable procedures, in
consultation with the State Governments wherever
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necessary, to ensure that the persons with deteriorated
health or terminally ill should be able to execute a document,
viz., ‘my living will & Attorney authorization’ which can be
presented to hospital for appropriate action in the event of
the executant being admitted to the hospital with serious
illness which may threaten termination of life of the
executant or in the alternative, issue appropriate guidelines
to this effect and to appoint an Expert Committee consisting
of doctors, social scientists and lawyers to study into the
aspect of issuing guidelines regarding execution of ‘Living
Wills’.
2) On 19.06.2002 and 25.06.2002, the petitioner-Society
had written letters to the Ministry of Law, Justice and
Company Affairs and the Ministry of Health and Family
Welfare with a similar prayer as in this writ petition.
Concurrently, the petitioner also wrote letters to the State
Governments in this regard, as hospitals come within the
jurisdiction of both the State Governments and the Union of
India.
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3) In the above said communication, the petitioner had
emphasized the need for a law to be passed which would
authorize the execution of the ‘Living Will & Attorney
Authorization’. Further, in the second letter, the petitioner-
Society particularly relied on the decision of this Court in
Gian Kaur vs. State of Punjab (1996) 2 SCC 648 to support
its request. Since no reply has been received, the petitioner-
Society has preferred this writ petition.
4) Heard Mr. Prashant Bhushan, learned counsel for the
petitioner-Society, Mr. Sidharth Luthra, learned Additional
Solicitor General for the Union of India and Mr. V.A. Mohta,
learned Senior Counsel and Mr. Praveen Khattar, learned
counsel for the intervenors.
Contentions:
5) According to the petitioner-Society, the citizens who are
suffering from chronic diseases and/or are at the end of their
natural life span and are likely to go into a state of terminal
illness or permanent vegetative state are deprived of their
rights to refuse cruel and unwanted medical treatment like
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feeding through hydration tubes, being kept on ventilator
and other life supporting machines, in order to artificially
prolong their natural life span. Thus, the denial of this right
leads to extension of pain and agony both physical as well as
mental which the petitioner-Society seeks to end by making
an informed choice by way of clearly expressing their wishes
in advance called “a Living Will” in the event of their going
into a state when it will not be possible for them to express
their wishes.
6) On the other hand, Mr. Sidharth Luthra, learned
Additional Solicitor General submitted on behalf of the Union
of India that as per the Hippocratic Oath, the primary duty of
every doctor is to save lives of patients. A reference was
made to Regulation 6.7 of the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations
2002, which explicitly prohibits doctors from practicing
Euthanasia. Regulation 6.7 reads as follows:-
“Practicing euthanasia shall constitute unethical conduct. However, on specific occasion, the question of withdrawing supporting devices to sustain cardiopulmonary function even after brain death, shall be decided only by a team of doctors and not
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merely by the treating physician alone. A team of doctors shall declare withdrawal of support system. Such team shall consist of the doctor in charge of the patient, Chief Medical Officer/Medical Officer in charge of the hospital and a doctor nominated by the in-charge of the hospital from the hospital staff or in accordance with the provisions of the Transplantation of Human Organ Act, 1994.”
In addition, the respondent relied on the findings of this
Court in Parmanand Katara vs. Union of India (1989) 4
SCC 286 to emphasise that primary duty of a doctor is to
provide treatment and to save the life whenever an injured
person is brought to the hospital or clinic and not otherwise.
7) The petitioner-Society responded to the
abovementioned contention by asserting that all these
principles work on a belief that the basic desire of a person is
to get treated and to live. It was further submitted that when
there is express desire of not having any treatment, then the
said person cannot be subjected to unwanted treatment
against his/her wishes. It was also submitted that subjecting
a person, who is terminally ill and in a permanently
vegetative state with no hope of recovery, to a life support
treatment against his/her express desire and keeping him
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under tremendous pain is in violation of his right to die with
dignity.
8) Besides, the petitioner-Society also highlighted that the
doctors cannot, by some active means like giving lethal
injections, put any person to death, as it would amount to
“active euthanasia” which is illegal in India as observed in
Aruna Ramchandra Shanbaug vs. Union of India (2011)
4 SCC 454. Therefore, the petitioner-Society pleads for
reading the aforesaid regulation only to prohibit the active
euthanasia and the said regulation should not be interpreted
in a manner which casts obligation on doctors to keep
providing treatment to a person who has already expressed a
desire not to have any life prolonging measure. Thus, it is the
stand of the petitioner-Society that any such practice will not
be in consonance with the law laid down by this Court in
Gian Kaur (supra) as well as in Aruna Shanbaug (supra).
Discussion:
9) In the light of the contentions raised, it is requisite to
comprehend what was said in Gian Kaur (supra) and
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Aruna Shanbaug (supra) to arrive at a decision in the
given case, as the prayer sought for in this writ petition
directly places reliance on the reasoning of the aforesaid
verdicts.
10) In Gian Kaur (supra), the subject matter of reference
before the Constitution Bench was as to the interpretation of
Article 21 relating to the constitutional validity of Sections
306 and 309 of the Indian Penal Code, 1860, wherein, it was
held that ‘right to life’ under Article 21 does not include ‘right
to die’. While affirming the above view, the Constitution
Bench also observed that ‘right to live with dignity’ includes
‘right to die with dignity’. It is on the basis of this
observation, the Petitioner-Society seeks for a remedy under
Article 32 of the Constitution in the given petition.
11) Therefore, although the discussion on euthanasia was
not relevant for deciding the question of Constitutional
validity of the said provisions, the Constitution Bench went
on to concisely deliberate on this issue as well in the ensuing
manner:-
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“24. Protagonism of euthanasia on the view that existence in persistent vegetative state (PVS) is not a benefit to the patient of a terminal illness being unrelated to the principle of Sanctity of life' or the 'right to live with dignity' is of no assistance to determine the scope of Article 21 for deciding whether the guarantee of 'right to life' therein includes the 'right to die'. The 'right to life' including the right to live with human dignity would mean the existence of such a right up to the end of natural life. This also includes the right to a dignified life up to the point of death including a dignified procedure of death. In other words, this may include the right of a dying man to also die with dignity when his life is ebbing out. But the 'right to die' with dignity at the end of life is not to be confused or equated with the 'right to die' an unnatural death curtailing the natural span of life.
25. A question may arise, in the context of a dying man, who is, terminally ill or in a persistent vegetative state that he may be permitted to terminate it by a premature extinction of his life in those circumstances. This category of cases may fall within the ambit of the 'right to die' with dignity as a part of right to live with dignity, when death due to termination of natural life is certain and imminent and the process of natural death has commenced. These are not cases of extinguishing life but only of accelerating conclusion of the process of natural death which has already commenced. The debate even in such cases to permit physician assisted termination of life is inconclusive. It is sufficient to reiterate that the argument to support the view of permitting termination of life in such cases to reduce the period of suffering during the process of certain natural death is not available to interpret Article 21 to include therein the right to curtail the natural span of life .”
In succinct, the Constitution Bench did not express any
binding view on the subject of euthanasia rather reiterated
that legislature would be the appropriate authority to bring
the change.
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12) In Aruna Shanbaug (supra), this Court, after having
referred to the aforesaid Para Nos. 24 and 25 of Gian Kaur
(supra), stated as follows:-
“21. We have carefully considered paragraphs 24 and 25 in Gian Kaur's case (supra) and we are of the opinion that all that has been said therein is that the view in Rathinam's case (supra) that the right to life includes the right to die is not correct. We cannot construe Gian Kaur's case (supra) to mean anything beyond that. In fact, it has been specifically mentioned in paragraph 25 of the aforesaid decision that "the debate even in such cases to permit physician assisted termination of life is inconclusive". Thus it is obvious that no final view was expressed in the decision in Gian Kaur's case beyond what we have mentioned above.”
It was further held that:-
101. The Constitution Bench of the Indian Supreme Court in Gian Kaur vs. State of Punjab 1996 (2) SCC 648 held that both euthanasia and assisted suicide are not lawful in India. That decision overruled the earlier two Judge Bench decision of the Supreme Court in P. Rathinam vs. Union of India 1994(3) SCC 394. The Court held that the right to life under Article 21 of the Constitution does not include the right to die (vide para 33). In Gian Kaur's case (supra) the Supreme Court approved of the decision of the House of Lords in Airedale's case (supra), and observed that euthanasia could be made lawful only by legislation .
13) Insofar as the above paragraphs are concerned, Aruna
Shanbaug (supra) aptly interpreted the decision of the
Constitution Bench in Gian Kaur (supra) and came to the
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conclusion that euthanasia can be allowed in India only
through a valid legislation. However, it is factually wrong to
observe that in Gian Kaur (supra), the Constitution Bench
approved the decision of the House of Lords in Airedale vs.
Bland (1993) 2 W.L.R. 316 (H.L.). Para 40 of Gian Kaur
(supra), clearly states that “even though it is not necessary
to deal with physician assisted suicide or euthanasia cases, a
brief reference to this decision cited at the Bar may be
made…” Thus, it was a mere reference in the verdict and it
cannot be construed to mean that the Constitution Bench in
Gian Kaur (supra) approved the opinion of the House of
Lords rendered in Airedale (supra). To this extent, the
observation in Para 101 is incorrect.
14) Nevertheless, a vivid reading of Para 104 of Aruna
Shanbaug (supra) demonstrates that the reasoning in Para
104 is directly inconsistent with its own observation in Para
101. Para 104 reads as under:-
“ 104. It may be noted that in Gian Kaur's case (supra) although the Supreme Court has quoted with approval the view of the House of Lords in Airedale's case (supra), it has not clarified who can decide whether life support
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should be discontinued in the case of an incompetent person e.g. a person in coma or PVS. This vexed question has been arising often in India because there are a large number of cases where persons go into coma (due to an accident or some other reason) or for some other reason are unable to give consent, and then the question arises as to who should give consent for withdrawal of life support. This is an extremely important question in India because of the unfortunate low level of ethical standards to which our society has descended, its raw and widespread commercialization, and the rampant corruption, and hence, the Court has to be very cautious that unscrupulous persons who wish to inherit the property of someone may not get him eliminated by some crooked method.”
15) In Paras 21 & 101, the Bench was of the view that in
Gian Kaur (supra), the Constitution Bench held that
euthanasia could be made lawful only by a legislation.
Whereas in Para 104, the Bench contradicts its own
interpretation of Gian Kaur (supra) in Para 101 and states
that although this court approved the view taken in Airedale
(supra), it has not clarified who can decide whether life
support should be discontinued in the case of an
incompetent person e.g., a person in coma or PVS. When, at
the outset, it is interpreted to hold that euthanasia could be
made lawful only by legislation where is the question of
deciding whether the life support should be discontinued in
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the case of an incompetent person e.g., a person in coma or
PVS.
16) In the light of the above discussion, it is clear that
although the Constitution Bench in Gian Kaur (supra)
upheld that the ‘right to live with dignity’ under Article 21 will
be inclusive of ‘right to die with dignity’, the decision does
not arrive at a conclusion for validity of euthanasia be it
active or passive. So, the only judgment that holds the field
in regard to euthanasia in India is Aruna Shanbaug
(supra), which upholds the validity of passive euthanasia
and lays down an elaborate procedure for executing the
same on the wrong premise that the Constitution Bench in
Gian Kaur (supra) had upheld the same.
17) In view of the inconsistent opinions rendered in Aruna
Shanbaug (supra) and also considering the important
question of law involved which needs to be reflected in the
light of social, legal, medical and constitutional perspective,
it becomes extremely important to have a clear enunciation
of law. Thus, in our cogent opinion, the question of law
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involved requires careful consideration by a Constitution
Bench of this Court for the benefit of humanity as a whole.
18) We refrain from framing any specific questions for
consideration by the Constitution Bench as we invite the
Constitution Bench to go into all the aspects of the matter
and lay down exhaustive guidelines in this regard.
19) Accordingly, we refer this matter to a Constitution
Bench of this Court for an authoritative opinion.
……….…………………………CJI. (P. SATHASIVAM)
………….…………………………J. (RANJAN GOGOI)
………….…………………………J. (SHIVA KIRTI SINGH)
NEW DELHI; FEBRUARY 25, 2014.
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